Federal Court of Australia

Hurst, in the matter of Liquor National Pty Ltd (in liq) (No 2) [2020] FCA 1177

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 477(2B) of the Corporations Act 2001 (Cth), the first plaintiff on behalf of the other plaintiffs named in the Schedule is authorised to enter into the Deed of Assignment being exhibit “DH-01” to the affidavit of David Hurst sworn 13 August 2020, and to the extent necessary such authorisation is given nunc pro tunc.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STEWART J:

1    The applicant, David Hurst, applies for approval pursuant to s 477(2B) of the Corporations Act 2001 (Cth) to enter into a deed of assignment. He does so in his representative capacity as liquidator and special purpose liquidator of seven companies which are referred to as the Rabobank companies (with reference to the identity of their principal secured creditor).

2    The relevant background is set out in the reasons for judgment of Gleeson J in Hurst, in the matter of Liquor National Pty Ltd (in liq) [2019] FCA 1581 (Hurst No 1) at [2]-[14]. These reasons assume familiarity with those reasons. In that judgment, her Honour gave approval to Mr Hurst, also pursuant to s 477(2B) of the Act, to enter into a litigation funding deed. The purpose of the deed was to provide Mr Hurst with funding so as to enable him to conduct the investigations for which he was appointed as special purpose liquidator in September 2017. See James, in the matter of Liquor National Pty Ltd (in liq) v Liquor National Pty Ltd (in liq) (No 2) [2017] FCA 1154 per Jagot J.

3    With the funding provided to Mr Hurst under that deed, he conducted examinations pursuant to s 596B of the Act of a number of persons between December 2019 and June 2020.

4    In August 2019, Mr Hurst on behalf of the Rabobank companies commenced a proceeding in the Supreme Court of New South Wales by filing a statement of claim. The purpose of filing the statement of claim then, well before the examinations were conducted, was to preserve time.

5    The statement of claim has not yet been served on the defendants. It sets out a number of claims which are summarised by Beech-Jones J in Liquor National Pty Ltd (in liq) v Australia and New Zealand Banking Group Ltd [2020] NSWSC 122 at [2]-[9]. In that judgment, his Honour extended the time limit for the service of the statement of claim in that proceeding by a period of six months which ends on 17 August 2020. It is that date which gives urgency to the case before me. His Honour concluded (at [15]) that the “claims appear to be arguable, genuinely made, and cannot be dismissed as mere fancy”.

6    It is relevant that the claims, at face value, are assessed in multiple millions of dollars. Whether or not they are good, and to what value, remains to be seen.

7    Mr Hurst explains in an affidavit deposed by him that he has attempted to obtain litigation funding from a number of litigation funders in order to progress the claims made in the statement of claim. He identifies six such funders whom he approached.

8    Mr Hurst was unsuccessful in obtaining an offer of litigation funding from any of those funders. He was, however, successful in obtaining an offer from Shelteo Pty Ltd, a company associated with the person who funded the public examinations under the litigation funding deed referred to above. That offer was accepted by Mr Hurst and the resultant agreement was reduced to a deed of assignment concluded on 13 August 2020.

9    The deed of assignment provides for the assignment by Mr Hurst and all of the companies of any causes of action and/or claims made by or available to him and the companies against various identified parties including all the claims in the statement of claim in the Supreme Court proceeding.

10    In return for the assignment, the assignee agreed to pay an assignment fee made up as follows. First, a payment of $30,000 payable within one business day of Mr Hurst obtaining court approval to conclude the deed of assignment. Second, payment of $120,000 payable on or before 9 October 2020. Third, payment of an “additional payment” payable to Mr Hurst within 28 business days from receipt of any proceeds of settlement or funds recovered in the prosecution of the claims.

11    The “additional payment” itself has three components to be paid in priority order as follows: (1) outstanding disbursements incurred by Mr Hurst as liquidator in the sum of $1,440, (2) outstanding legal professional fees in respect of work in progress and unbilled work in progress of Mr Hurst as liquidator together amounting to approximately $425,000, and (3) an amount calculated as 10% of any net proceeds from the successful recovery of any funds arising from the claims.

12    Although the assignee’s first two payment obligations are to be discharged by performance less than three months after the date of the deed of assignment, unless the claims are settled very quickly the various components of the “additional payment”, if there is any recovery, will occur later than three months after the deed of assignment.

13    The fact that such obligations may be discharged by performance more than three months after the deed of assignment enlivens s 477(2B) of the Act which provides as follows:

(2B)    Except with the approval of the Court, of the committee of inspection or of a resolution of the creditors, a liquidator of a company must not enter into an agreement on the company’s behalf (for example, but without limitation, a lease or an agreement under which a security interest arises or is created) if:

(a)    without limiting paragraph (b), the term of the agreement may end; or

(b)    obligations of a party to the agreement may, according to the terms of the agreement, be discharged by performance;

more than 3 months after the agreement is entered into, even if the term may end, or the obligations may be discharged, within those 3 months.

14    The relevant principles are identified by Gleeson J in Hurst No 1 at [15]-[20]. To those I would add, because it is pertinent to the application before me, that one of the considerations is the impact of the agreement for which approval is sought on the duration of the liquidation: Re Opel Networks Pty Ltd [2013] NSWSC 1245 at [7] per Brereton J.

15    Insofar as that consideration is concerned, it is to be noted that the deregistration of four of the seven companies was deferred to 21 June 2021 whereafter they will be deregistered: James, in the matter of Liquor National Pty Ltd (in liquidation) v Liquor National Pty Ltd (in liq) [2017] FCA 721. Because of that, Mr Hurst has said that should it appear that the Supreme Court proceeding will not be successfully resolved prior to that date, it is his intention to propound a deed of company arrangement for the benefit of creditors of the companies with the “additional payment” to form the deed fund thereunder. Thus, he submits that execution of the deed of assignment by him will not have the consequence that the liquidations will be unduly delayed.

16    Mr Hurst is a liquidator experienced in commercial litigation and in litigation funding arrangements. He has explained his unsuccessful attempts to obtain orthodox litigation funding. I accept that he has acted reasonably in that respect.

17    Also, Mr Hurst has expressed his opinion that the terms of the deed of assignment are commercially reasonable and in the best interests of creditors. That is particularly so where it is the only offer that has been received in order to prosecute the Supreme Court proceeding which, as indicated, has at least some prospect of success and has the potential to yield very considerable returns.

18    There is no committee of inspection for any of the companies. Mr Hurst has not sought approval from creditors of the companies. The secured creditor, Rabobank Australia Ltd, which may have an interest in the proceeding, opposed Mr Hurst’s appointment as special purpose liquidator to pursue the investigations and ultimately the claims. It can be assumed that it would not support the orders today but I see no prejudice that it would face – it has realised its security and in respect of any remaining shortfall the alternative is that it would get nothing. The deed of assignment offers it the prospect of some further recovery. Mr James, who is the major unsecured creditor, and who has a familial tie to the person with whom the assignee company is associated, clearly supports the relief that is sought.

19    I accept that Mr Hurst has entered into the deed of assignment in good faith and in order to pursue the purposes for which he was first appointed as special purpose liquidator.

20    In all the circumstances, I am satisfied that this is an appropriate matter for the Court’s approval under s 477(2B) of the Act to be given to the liquidator’s entry into the deed of assignment.

21    It is to be noted that the deed of assignment was executed very shortly before the application was called on for hearing on the duty list. As a consequence, approval should be given nunc pro tunc, for which there is authority: Krejci (liquidator), in the matter of Community Work Pty Ltd (in liq) [2018] FCA 425 at [43] per Gleeson J.

22    Finally, Mr Hurst initially sought a suppression order over the deed of assignment under ss 37AF and 37AG of the Federal Court of Australia Act 1976 (Cth) on the grounds that its terms are commercially sensitive. However, when it was pointed out that it will be necessary to prove the assignment in order to substitute the plaintiffs in the Supreme Court proceeding, and in order to pursue that proceeding to its conclusion, with the result that the terms of the assignment will necessarily be made known to the defendants in the Supreme Court proceeding, counsel for Mr Hurst sensibly accepted that a suppression order is not “necessary to prevent prejudice to the proper administration of justice” (s 37AG(1)(a)). The suppression relief was thus not pressed.

Associate:

Dated:    17 August 2020

SCHEDULE OF PARTIES